1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES J., Case No.: 3:23-cv-00481-JLS-AHG 12 Plaintiff, REPORT AND RECOMMENDATION REGARDING 13 v. DEFENDANT’S MOTION TO 14 MICHELLE KING, Acting Commissioner REMAND, PLAINTIFF’S MOTION of Social Security,1 TO BIFURCATE, AND PLAINTIFF’S 15 MOTION FOR SANCTIONS 16 Defendant. [ECF Nos. 61, 63, 87] 17 18 19 20 Before the Court are three motions: 21 (1) Defendant Carolyn Colvin’s (“Defendant” or “Commissioner”) Motion to 22 Remand (ECF No. 61), 23 (2) Plaintiff James J.’s (“Plaintiff”) Motion to Bifurcate (ECF No. 63), and 24 (3) Plaintiff’s Motion for Sanctions (ECF No. 87). 25
26 1 Michelle King became the Acting Commissioner of the Social Security Administration 27 on January 20, 2025. Although Plaintiff originally brought this action against Former Commissioner Kilolo Kijakazi, this case may properly proceed against Michelle King 28 1 The undersigned took the motions under submission for a Report and Recommendation 2 without oral argument pursuant to Local Rule 7.1(d)(1). See ECF Nos. 84, 90. After a 3 thorough review of the parties’ submissions and applicable law, the Court 4 RECOMMENDS that the District Judge GRANT the Defendant’s Motion to Remand, 5 DENY Plaintiff’s Motion to Bifurcate as moot, and DENY Plaintiff’s Motion for 6 Sanctions. 7 I. DEFENDANT’S MOTION TO REMAND 8 On July 8, 2024, Defendant filed a Motion for Voluntary Remand Pursuant to 9 Sentence Four of 42 U.S.C. § 405(g) (“Motion to Remand”). ECF No. 61. Plaintiff opposes 10 the Motion to Remand. ECF No. 75. 11 In the Motion to Remand, the Commissioner voluntarily requests that the Court enter 12 judgment in favor of Plaintiff and against Defendant, reversing the final decision of the 13 Commissioner and remanding this action for further administrative proceedings. 14 Specifically, the Commissioner states that because “it is not evident from the record that 15 the ALJ considered Plaintiff’s June 22, 2022 request to change the time and place of the 16 hearing,” the Court should order a new hearing and decision by an administrative law judge 17 under sentence four of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). ECF 18 No. 61 at 3-4. 19 Plaintiff opposes the Motion to Remand, arguing that it was “filed for improper 20 purposes,” including to cause delay and to perpetrate fraud. ECF No. 75 at 4. Plaintiff’s 21 Motion for Sanctions (discussed in more detail below) further fleshes out Plaintiff’s 22 arguments in support of his opposition to the Motion to Remand, so the Court will not 23 recount them exhaustively here. Most pertinent, Plaintiff argues that remand would cause 24 further delay in his case, that the evidence he would need to support his claim on remand 25 including witness testimony has already been spoiled by the 12-year delay since he first 26 filed his application, and that the record presently before the Court is sufficient to support 27 the immediate award of benefits rather than a remand for further proceedings. See id. at 5- 28 19. Therefore, Plaintiff urges the Court to instead reach the merits of his Title II disability 1 application rather than remanding for further proceedings. Id. at 20-21. 2 As explained in the Court’s Order screening the operative Second Amended 3 Complaint (“SAC”), the Court lacks subject matter jurisdiction over all claims in the SAC 4 except for Plaintiff’s § 405(g) claim pertaining to the denial of his application for Title II 5 disability insurance benefits. See ECF No. 51 at 11-17. Further, the scope of that claim on 6 appeal is limited to the question of whether the Commissioner erred by dismissing 7 Plaintiff’s request for a hearing. Id. at 19-21; see also id. at 24 n.16.2 Therefore, the only 8 proper question before the Court is rendered moot by the Commissioner’s request to 9 reverse her own decision and remand the case to provide Plaintiff the hearing he was 10 previously denied. For that reason, the Court should grant Defendant’s Motion to Remand. 11 Plaintiff’s arguments to the contrary are unavailing. Plaintiff presses the Court to 12 reverse for an immediate award of benefits to avoid further delay in resolving his disability 13 application, but the record and governing law do not support such a result. 14 First, as explained in the Court’s prior screening order, the Court’s review is limited 15 to the procedural decision made by the ALJ to dismiss Plaintiff’s hearing request based on 16 the ALJ’s finding that Plaintiff did not show good cause for failing to attend the second 17 hearing on his application. See ECF No. 51 at 18-20. Because the Appeals Council vacated 18
19 2 The Court acknowledges that in his opposition to the Motion to Remand, Plaintiff objects to the Court’s finding in its screening order with the respect to its limited scope of review, 20 on the basis that 42 U.S.C. § 405(g) is “vague and confusing for the common man” and 21 should thus be declared void for vagueness. Id. at 23-24. However, the issue of whether 42 U.S.C. § 405(g) is void for vagueness is not squarely before the Court. The Court has 22 already addressed Plaintiff’s objections to the order screening the SAC in its Order 23 Denying Ex Parte Motion to Vacate or Reconsider Court’s May 6, 2024 Order, and declined to overturn any part of that order. ECF No. 56. The analysis in this Report and 24 Recommendation is thus limited to the issues raised in the three motions at hand and does 25 not reopen any issues already decided in the screening order or the order denying reconsideration thereof. Moreover, the Court notes that even if § 405(g) were struck down 26 for vagueness, that would merely have the effect of eliminating the sole waiver of sovereign 27 immunity that allows Plaintiff to bring any claim at all against the Government in connection with his benefits determination; it would not expand the immunity waiver to 28 1 the ALJ’s first decision and ordered a new hearing, the ALJ’s dismissal of Plaintiff’s 2 hearing request due to Plaintiff’s failure to appear at the second hearing reinstalled the 3 denial of Plaintiff’s disability application at the reconsideration level–it did not reinstall 4 the ALJ’s unfavorable decision that had been vacated by the Appeals Council. See AR 13 5 (the ALJ’s September 28, 2022 decision, which became the Commissioner’s final decision 6 on appeal to this Court, stating that Plaintiff’s “request for hearing dated December 5, 2014 7 is dismissed and the determination dated October 9, 2014 remains in effect.”). Therefore, 8 the merits of Plaintiff’s disability application were never finally decided by the agency and 9 are not before the Court now. The Supreme Court has cautioned lower courts not to decide 10 “a question that has been delegated to an agency if that agency has not first had a chance 11 to address the question. . . . [A] court should restrict its review to the procedural ground 12 that was the basis for the Appeals Council dismissal and (if necessary) allow the agency to 13 address any residual substantive questions in the first instance.” Smith v. Berryhill, 587 14 U.S. 471, 488 (2019). The Court should follow that directive here. 15 Indeed, whether the Court even has jurisdiction to review the narrow issue of the 16 ALJ’s dismissal of the hearing request after Plaintiff refused to attend the hearing is 17 uncertain and would depend on a finding that Plaintiff has a colorable constitutional due 18 process claim arising from the dismissal. See Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 19 1992) (finding subject matter jurisdiction lacking under § 405(g) where a social security 20 disability claimant refused to attend his hearing at the agency level due to his belief that 21 the ALJ was biased, because “[b]y refusing to attend the hearing, [the plaintiff] waived his 22 opportunity for a hearing and he failed to exhaust the administrative remedy upon which 23 judicial review depends”); Kinsley v. Comm’r of Social Security, No. 2:19-CV-00991- 24 BAT, 2019 WL 4858794, at *2-3 (W.D. Wash. Oct. 2, 2019) (applying Hoye to find no 25 subject matter jurisdiction where the plaintiff failed to appear for the hearing at the agency 26 level and established no exception to the exhaustion requirement); cf. Crumble v. Sec’y of 27 Health & Hum. Servs., 586 F. Supp. 57, 60 n.3 (E.D.N.Y. 1984) (declining to apply a 28 “literal reading” of § 405(g)’s requirement that there be an administrative hearing prior to 1 judicial review, reasoning that the absence of any administrative procedures for hearing a 2 claimant’s explanations for failing to appear should be “interpreted as a waiver of a hearing 3 for the limited purpose of establishing § 405 jurisdiction on the ‘good cause’ issue”); 4 Counts v. Comm’r of Social Security, No. 6:09-CV-2157-ORL, 2010 WL 5174498, at *4– 5 5 (M.D. Fla. Dec. 15, 2010) (following the approach of the Crumble court to find a limited 6 grant of subject matter jurisdiction under § 405(g) to address whether the Social Security 7 agency properly dismissed the plaintiff’s hearing request as untimely, but not addressing 8 the merits of the plaintiff’s underlying disability application). 9 Second, as outlined in Plaintiff’s SAC, one of Plaintiff’s key frustrations with how 10 the agency handled his disability application is that the ALJ did not consider the new 11 evidence he submitted prior to the first hearing, including a comprehensive “Consultative 12 Exam Report” compiled by his treating physician “Dr. T,” as well as “numerous other 13 prehearing submissions;” nor did the ALJ address other various pre-hearing requests such 14 as requests for subpoenas and for his physicians to appear telephonically as witnesses at 15 the hearing. See ECF No. 46 ¶¶ 91-115. In his opposition to the Motion to Remand, Plaintiff 16 refers to the agency’s exclusion of such evidence as creating “an incomplete and false 17 record absent all of Plaintiff’s key testimony” and characterizes the agency’s actions in 18 previously dismissing his hearing request, only to now request remand for an 19 administrative hearing, as “foul play” and “the engineering of fraud through the creation 20 of a false record built on the victories of Defendants’ willful protractions and ‘spoliations.’” 21 ECF No. 75 at 4. Plaintiff thus argues “[t]here is no genuine need for a hearing when the 22 case laws point to an expedited solution, when all the witness testimony needed by Plaintiff 23 has been ‘spoiled’ forever by the willfully intended protractions of the Defendants[.]” Id. 24 at 5. 25 Plaintiff’s complaints regarding the record only further bolster the point that 26 remanding for an immediate award of benefits would be improper. That is, Plaintiff insists 27 that the record below is “incomplete and false” and missing “key testimony” because of 28 the ALJ’s failure to consider or issue subpoenas to obtain certain evidence. ECF No. 75 at 1 4. But the Court cannot remand a case for the immediate award of benefits unless—among 2 other requirements—“the record has been fully developed and further administrative 3 proceedings would serve no useful purpose[.]” Garrison v. Colvin, 759 F.3d 995, 1020 (9th 4 Cir. 2014). See also Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1235 (9th Cir. 2011) 5 (“Remand for further proceedings is appropriate where there are outstanding issues that 6 must be resolved before a disability determination can be made”). As Plaintiff himself 7 argues, the record is not fully developed here because Plaintiff submitted evidence to the 8 ALJ below and made requests for subpoenas for documents and witnesses that the ALJ 9 failed to consider before issuing his first decision. Indeed, the Appeals Council specifically 10 vacated the ALJ’s opinion because the ALJ failed to address Plaintiff’s pre-hearing 11 submission of an amended disability onset date and subpoena requests. AR 138-139. The 12 Ninth Circuit has made clear that remand for further administrative proceedings is proper 13 where, as here, the claimant’s disability onset date is in question. Dettlo v. Barnhart, 227 14 F. App’x 650, 650-51 (9th Cir. 2007); see also Bunnell v. Barnhart, 336 F.3d 1112, 1116 15 (9th Cir. 2003) (noting that the “timing and duration of [a claimant’s] disability” is an 16 outstanding issue warranting remand for further proceedings); Terry v. Astrue, No. 10-CV- 17 0720-PHX-GMS, 2011 WL 1641768, at *2-3 (D. Ariz. May 2, 2011) (finding that remand 18 for further factual proceedings is the appropriate remedy where a claimant has submitted 19 an amended alleged disability onset date because that issue is material to the disability 20 determination). Therefore, even setting aside the fundamental problem that the Court does 21 not have subject matter jurisdiction to address the merits of Plaintiff’s disability 22 application, remand for an immediate award of benefits would be inappropriate in any 23 event due to the disputed record.3 On remand, the ALJ will be able to further develop 24
25 3 In the Motion to Remand, Plaintiff argues that, by failing to file an answer, Defendants have waived all defenses to the SAC and “agree to[] the fact Plaintiff has met his burden 26 of proof for all claims listed in the SAC, Part A[.]” ECF No. 75 at 6. However, Rule 4 of 27 the Supplemental Rules of Social Security Actions supplants the requirements of Rule 8 of the Federal Rules of Civil Procedure and specifies that in Social Security actions, “[a]n 28 1 Plaintiff’s alleged disability onset date and consider disability from that date as well as 2 address Plaintiff’s subpoena requests for documents and witnesses, as the Appeals Council 3 previously ordered the ALJ to do after vacating the ALJ’s 2017 decision. AR 138-39. 4 Finally, the cases on which Plaintiff relies to highlight the injustice of the long delay 5 in his case do not support a remand for an immediate award of benefits. For example, 6 Plaintiff cites repeatedly to White v. Mathews, in which the Second Circuit upheld the lower 7 court’s issuance of a writ of mandamus under 28 U.S.C. § 1361 to compel the Social 8 Security agency to follow a specific schedule to reduce the maximum delay between a 9 request for hearing and a final decision by an ALJ to 120 days, and to automatically award 10 interim benefits to claimants who are made to wait longer until a decision on their disability 11 application is rendered. 559 F.2d 852, 855, 858-61 (2d Cir. 1977). Although that case deals 12 with what constitutes a “reasonable delay” before the agency hears a disability application, 13 it does not stand for the proposition that remand for an award for immediate award of 14 benefits is appropriate any time the claimant has faced an unreasonable delay in having his 15 disability application heard. Rather, the federal court fashioned a mandamus remedy to 16 ensure claimants obtained disability hearings within a reasonable time. It did not eliminate 17 the hearing requirement altogether. Similarly, the Ninth Circuit in Garrison v. Colvin did 18 not rule that the need for a “speedy resolution of disability applicants’ claims” justifies 19 remand for an immediate award of benefits in all cases where a lengthy delay exists. Rather, 20 the Garrison court recited the familiar three-part test for the credit-as-true rule, “each part 21 of which must be satisfied” before the Court can remand for an immediate award of 22 benefits: 23 (1) the record has been fully developed and further administrative proceedings 24
25 affirmative defenses under Civil Rule 8(c). Rule 8(b) does not apply.” Fed. R. Civ. P., Supp. R. 4 of Soc. Sec. Actions under 42 U.S.C. § 405(g). Therefore, Defendant was not 26 required to admit or deny the allegations in the SAC under Rule 8(b) and has not effectively 27 admitted to the allegations by failing to deny them. Plaintiff’s reliance on Defendant’s lack of a formal answer to the SAC to insist the Court should treat all allegations therein as true 28 1 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 2 medical opinion; and (3) if the improperly discredited evidence were credited 3 as true, the ALJ would be required to find the claimant disabled on remand. 4 Garrison, 759 F.3d at 1020 (citations omitted). As already discussed, the first part of the 5 test is not met here. Plaintiff also emphasizes a parenthetical description of the Ninth 6 Circuit’s decision in Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) as “reversing 7 the denial of disability benefits where the ALJ failed in his duty to fully and fairly develop 8 the record.” ECF No. 75 at 7, 17 (quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 9 2004)). Again, Celaya does not stand for the proposition that the Court should reverse for 10 an immediate award of benefits where the ALJ failed to fully and fairly develop the record. 11 There, the Ninth Circuit directed the district court to remand the case to the ALJ with 12 specific instructions to develop the record regarding the plaintiff’s obesity and to engage 13 in an analysis “that culminates in reviewable, on-the-record findings.” 332 F.3d at 1183. 14 In other words, because the record was not complete, the proper remedy was to remand for 15 further administrative proceedings and analysis on a supplemented record—not to remand 16 for an immediate award of benefits. 17 For these reasons, although the Court is sympathetic to Plaintiff’s frustrations 18 regarding the long delay in the resolution of his benefits application, granting Defendant’s 19 motion to remand for further proceedings is appropriate. The Court recommends the 20 Motion to Remand be GRANTED and this case be remanded to the agency for a new 21 hearing before a new ALJ under sentence four of Section 205(g) of the Social Security Act, 22 42 U.S.C. § 405(g), and that a final judgment be entered in favor of Plaintiff and against 23 Defendant, reversing the final decision of the Commissioner. 24 II. PLAINTIFF’S MOTION TO BIFURCATE 25 In a separate Motion to Bifurcate Claims (“Motion to Bifurcate”) (ECF No. 63), 26 Plaintiff asks the Court to bifurcate the claims brought in “Part A” of his SAC—that is, his 27 disability claims arising under 42 U.S.C. § 405(g)—from the claims raised in Parts B – E 28 1 of the SAC, which the Court dismissed without leave to amend in its screening order for 2 lack of subject matter jurisdiction. See ECF No. 51 at 24. Plaintiff explains that he seeks to 3 bifurcate his claims so that he can immediately appeal the Court’s dismissal of the other 4 claims in his SAC without waiting for a decision on the Motion to Remand concerning the 5 § 405(g) claims. ECF No. 63 at 5-7. In particular, Plaintiff notes that he is uncertain whether 6 he needs to wait to appeal the screening order “until the entire case is completed,” or 7 whether he might lose his opportunity to appeal the dismissal of the claims raised in Parts 8 B – E of the SAC if he does not do so within 60 days of the Court’s denial of reconsideration 9 of the screening order. ECF No. 63 at 6 n.2. Thus, Plaintiff explains he is “simply err[]ing 10 to the conservative side” by seeking to bifurcate the claims and asks the Court to “order 11 whatever is necessary to expedite the appeal process for the Part B to E claims, regardless 12 of the Part A claims disposition in the case.” Id. n.3. 13 Importantly, at the time Plaintiff filed the Motion to Bifurcate on July 15, 2024, he 14 had not yet appealed the Court’s screening order dismissing his claims in Parts B – E of 15 the SAC. Plaintiff indicated in the Motion to Bifurcate that he believed he had only 60 days 16 from the date of the Court’s denial of his motion for reconsideration on the screening 17 order—i.e., until August 12, 2024—to file an appeal on the dismissal of those claims, and 18 that he thought the appeal would take “many months (usually a year or more) to conclude.” 19 ECF No. 63 at 6-7. After filing the Motion to Bifurcate, Plaintiff appealed that screening 20 order on August 5, 2024. ECF No. 74. On August 29, 2024, the Court of Appeals found 21 that it lacked jurisdiction over the appeal because the order challenged was not final or 22 appealable. ECF No. 89. See also 28 U.S.C. § 1291 (explaining that the courts of appeal 23 have jurisdiction over “final decisions of the district courts”); Fed. R. Civ. P. 54(b) 24 (explaining that any order by a district court adjudicating fewer than all the claims in a case 25 is not a final decision, although the court may direct entry of a final judgment as to fewer 26 than all the claims “only if the court expressly determines that there is no just reason for 27 delay.”). 28 The Court must construe pro se pleadings liberally. Erickson v. Pardus, 551 U.S. 1 89, 94 (2007). Therefore, although Plaintiff styles his motion as a “motion to bifurcate,” 2 considering the rationale underlying the request, the Court should construe it as a motion 3 to certify Plaintiff’s claims in Parts B – E of the SAC as immediately appealable under 4 Rule 54(b). That is, Plaintiff’s reason for seeking to bifurcate the claims at the time he filed 5 the Motion to Bifurcate was to ensure that he could timely appeal the Court’s dismissal of 6 the claims in Parts B – E of the SAC without forfeiting the opportunity to appeal any 7 decision on the 405(g) claims in Part A. Moreover, he erroneously believed the 60-day 8 appeal period for the dismissal of the claims in Parts B – E of the SAC had already begun 9 to run as soon as the Court denied his motion to reconsider the screening order. ECF No. 10 63 at 6. Therefore, it appears to the undersigned that, by moving to bifurcate, Plaintiff was 11 seeking a solution that would allow him to immediately appeal the claims in Parts B – E of 12 the SAC without hindering his pursuit of benefits under the remaining § 405(g) claim 13 before this Court. Such a remedy would fit under a motion to certify the dismissed claims 14 for immediate appeal under Rule 54(b). 15 Construing Plaintiff’s motion as a motion to certify the dismissed claims for 16 immediate appeal under Rule 54(b), and assuming the Court follows the above 17 recommendation to grant Defendant’s Motion to Remand, the Court should deny the 18 Motion to Bifurcate as moot on the basis that all claims in the SAC will become 19 immediately appealable upon the Court’s entry of a final judgment remanding Plaintiff’s 20 disability claims to the agency for further proceedings. See Melkonyan v. Sullivan, 501 U.S. 21 89, 101-02 (1991) (explaining that a remand order under sentence four of § 405(g) must be 22 accompanied by a “final judgment” triggering the beginning of the appeal period). 23 Accordingly, Plaintiff will not need to bifurcate the claims in the SAC in order to appeal 24 both the Court’s order remanding his § 405(g) claims and its order dismissing his other 25 claims immediately upon the Court’s remand and entry of judgment. 26 Notwithstanding the above recommendation, the Court notes that separate and apart 27 from his desire to expedite the appeals process for the claims in Parts B – E of the SAC, 28 Plaintiff also expresses a desire to avoid the “Part A portion of the case” from becoming 1 “encumbered by a shift of jurisdiction to the 9 Circuit Court and then becom[ing] subject 2 to that lengthy appeal process.” ECF No. 63 at 8. If Plaintiff does not intend to appeal any 3 order remanding his disability claims to the agency level because he wishes to expedite the 4 administrative process below, but he still wishes to appeal the dismissal of his other claims, 5 the above construction of Plaintiff’s Motion to Bifurcate as a motion to certify the claims 6 in Parts B – E of the SAC for immediate appeal may not fully capture the relief Plaintiff 7 seeks. However, even in that case, the undersigned would still recommend the Motion to 8 Bifurcate be denied. Although the Federal Rules of Civil Procedure permit bifurcation of 9 claims to be heard in separate trials, see Fed. R. Civ. P. 42(b), there is no clear mechanism 10 under the Federal Rules to bifurcate Plaintiff’s claims in the way Plaintiff requests—i.e., 11 to allow one set of claims in a complaint to be appealed while another claim in the same 12 action is remanded to the agency—outside of Rule 54(b). Thus, to the extent Plaintiff is 13 requesting the Court certify Parts B – E for appeal under Rule 54(b) while Plaintiff pursues 14 his § 405(g) claim on remand without appealing the Court’s order remanding that claim, 15 that request should be denied. 16 Rule 54(b) instructs the Court that it may direct entry of a final judgment as to “one 17 or more, but fewer than all, claims” in a case “only if the court expressly determines that 18 there is no just reason for delay.” Fed. R. Civ. P. 54(b). In making that determination, “a 19 district court must take into account judicial administrative interests as well as the equities 20 involved.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980). The decision 21 whether to certify is left to the sound judicial discretion of the district court, and the 22 discretion must be exercised “in the interest of sound judicial administration.” Id. at 10 23 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). Some of the relevant 24 factors a court may consider in reaching this determination include (1) whether certification 25 would result in unnecessary appellate review; (2) whether the claims finally adjudicated 26 are separate, distinct, and independent of any of the other claims or counterclaims involved; 27 (3) whether review of the adjudicated claims would be mooted by any future developments 28 in the case; and (4) whether the nature of the claims is such that no appellate court would 1 have to decide the same issues more than once even if there were subsequent appeals. 2 Curtiss-Wright, 446 U.S. at 5-6. Here, the Court need look no further than the first of these 3 factors to determine that certifying Plaintiff’s dismissed claims in Parts B – E of the SAC 4 for immediate appeal is not in the interest of sound judicial administration. As thoroughly 5 discussed by the Court in its previous screening order, the federal court lacks subject matter 6 jurisdiction over those claims, and they are unlikely to be revived by the Court of Appeals. 7 See, e.g., Henderson v. Colvin, No. 6:14-CV-1053-PA, 2015 WL 6598713, at *1-2 (D. Or. 8 Oct. 29, 2015) (finding that the federal court lacked subject matter jurisdiction over a pro 9 se plaintiff’s claims for defamation, disability discrimination, and denial of subsidized 10 housing that she brought in conjunction with her appeal of the Commissioner’s denial of 11 her disability benefits application because they did not fall within the limited carve-out of 12 sovereign immunity provided in 42 U.S.C. § 405(g)). Certification would thus result in 13 unnecessary appellate review. 14 To be clear, Plaintiff will still have the opportunity to appeal the Court’s dismissal 15 of the claims raised in Parts B – E of the SAC and may do so immediately upon the entry 16 of final judgment in this action. But Plaintiff has not established a basis for the Court to 17 find that those claims should be certified for appeal separately from Plaintiff’s disability 18 claim arising under § 405(g) while it is on remand at the agency level. Nor has Plaintiff 19 established any other legal basis to bifurcate his claims. Therefore, the Motion to Bifurcate 20 should be DENIED. 21 III. PLAINTIFF’S MOTION FOR SANCTIONS 22 Plaintiff has also filed a separate Motion for Sanctions against the Commissioner 23 under Rule 11 of the Federal Rules of Civil Procedure and Civil Local Rule 83.1 in 24 response to Defendant’s Motion to Remand. ECF No. 87. Plaintiff notes that the Appeals 25 Council already ordered a new hearing in October 2018, and has yet to comply with that 26 order, and he contends Defendant’s true goal is to “engineer a faux record devoid of key 27 evidence in order to affect fraudulent denial of federal benefits” on remand. Id. at 5. 28 Plaintiff believes Defendant’s failure to file a “defensive Answer[]” in response to his SAC 1 operates as a “locked-in affirmation” all of his Section 405(g) claims and estops the agency 2 from challenging any of Plaintiff’s evidence, including the Consultative Exam Report 3 submitted by his treating physician, and thus “a new hearing would serve no purpose 4 because Plaintiff has met his burden of proof.” Id. at 7. Therefore, on the basis that 5 Defendant’s attorneys should also recognize these purported facts, Plaintiff characterizes 6 the Motion to Remand as “frivolous and abusive,” and calls for “an official court inquiry, 7 if not a full disbarment action” against each of the defense attorneys. Id. Plaintiff also 8 reasserts his complaints raised in the Opposition to the Motion to Remand regarding the 9 years-long delay of his case and details a number of grievances from over the course of his 10 claim since he first applied for disability in May 2012, including conduct by the ALJ in 11 withholding rulings on his subpoena requests and attempting to force him to appear for a 12 hearing in a “Covid sick building,” which Plaintiff characterizes as an “attempted murder” 13 scheme by the agency. Id. at 6-9. Based on these allegations, Plaintiff argues Defendant 14 filed the Motion to Remand for an improper purpose–namely, abuse, delay, and to increase 15 costs–and without evidentiary or legal support, in violation of Rule 11. Id. at 15-18. 16 In addition to his allegations of willful conduct on the part of Defendant and defense 17 counsel supporting his request for Rule 11 sanctions, Plaintiff laments that key evidence 18 such as witness testimony from his physicians has now been “spoiled” due to the passage 19 of time, and presents a separate spoliation argument under Fed. R. Civ. P. 37 and related 20 caselaw. Id. at 9-15. 21 A. Applicable Legal Standards 22 Rule 11(b)(1) authorizes the court to impose sanctions for a pleading, written 23 motion, or other paper presented for an “improper purpose, such as to harass, cause 24 unnecessary delay, or needlessly increase the cost of litigation[.]” Fed. R. Civ. P. 11(b)(1). 25 If a court finds that a motion or paper, other than a complaint, is filed in the context of a 26 persistent pattern of clearly abusive litigation activity, it will be deemed to have been filed 27 for an improper purpose and sanctionable. Aetna Life Ins. Co. v. Alla Medical Services, 28 Inc., 855 F.2d 1470, 1476 (9th Cir. 1988). The conduct forming the basis of the moving 1 party’s charge of harassment “must do more than in fact bother, annoy or vex the 2 complaining party.” Zaldivar v. City of Los Angeles, 780 F.2d 823, 831-32 (9th Cir. 1986). 3 That is, application of the Rule is based on an objective, not subjective, standard, focusing 4 on “the improper purpose of the signer, objectively tested, rather than the consequences of 5 the signer’s act, subjectively viewed by the signer’s opponent.” Id. at 832. “Rule 11 6 sanctions should be applied if a competent attorney, after reasonable inquiry, would not 7 have a good faith belief in the merit of a legal argument.” Amwest Mortg. Corp. v. Grady, 8 925 F.2d 1162, 1164 (9th Cir. 1991). The Ninth Circuit has cautioned that, because “our 9 system of litigation is an adversary one,” courts “should impose sanctions on lawyers for 10 their mode of advocacy only in the most egregious situations, lest lawyers be deterred from 11 vigorous representation of their clients.” United Nat’l Ins. Co. v. R&D Latex Corp., 242 12 F.3d 1102, 1115 (9th Cir. 2001) (emphasis in original). Therefore, the type of conduct 13 properly addressed by Rule 11 sanctions is limited to “litigation tactics so vexatious as to 14 be unjustifiable even within the broad bounds of our adversarial system, and that neither 15 the other parties nor the courts should have to abide such behavior or waste time and money 16 coping with it.” Id. 17 Spoliation sanctions are governed by Rule 37(e) of the Federal Rules of Civil 18 Procedure, which provides as follows: 19 If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take 20 reasonable steps to preserve it, and it cannot be restored or replaced through 21 additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, 22 may order measures no greater than necessary to cure the prejudice; or 23 (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: 24 (A) presume that the lost information was unfavorable to the 25 party; (B) instruct the jury that it may or must presume the information 26 was unfavorable to the party; or 27 (C) dismiss the action or enter a default judgment. 28 Fed. R. Civ. P. 37(e). A party moving for spoliation sanctions bears “the burden of 1 establishing spoliation by demonstrating that [the non-moving party] destroyed documents 2 and had some notice that the documents were potentially relevant to the litigation before 3 they were destroyed.” Harfouche v. Wehbe, 705 F. App’x 589, 590 (9th Cir. 2017) (quoting 4 Ryan v. Editions Ltd. West, Inc., 786 F.3d 754, 766 (9th Cir. 2015)). See also United States 5 v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). 6 If the moving party cannot show that the non-moving party acted with “intent to 7 deprive” another party of the information but otherwise establishes that the evidence was 8 lost because the non-moving party failed to take reasonable steps to preserve it, the 9 subparagraph applies only “upon finding prejudice” to another party from the loss of 10 information. Fed. R. Civ. P. 37(e)(1). “The Court has discretion to determine whether the 11 loss of the information is prejudicial; neither party carries a burden of proving or disproving 12 prejudice.” Hernandez v. Tulare Cty. Corr. Ctr., No. 116CV00413EPGPC, 2018 WL 13 784287, at *4 (E.D. Cal. Feb. 8, 2018) (quoting Fed. R. Civ. P. 37(e) advisory committee’s 14 note to 2015 amendment). The Court’s evaluation of whether the loss of the information 15 was prejudicial depends in part on the importance of the information to the case. Id. Further, 16 upon a finding of prejudice, the Court may issue a sanction “no greater than necessary to 17 cure the prejudice.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. 18 B. Discussion 19 The Court will address Plaintiff’s request for Rule 11 sanctions before turning to his 20 spoliation argument under Rule 37. 21 Rule 11 Sanctions 22 As discussed above, remand for further proceedings is the appropriate remedy in this 23 case to allow Plaintiff the opportunity to be heard on the merits of his disability application. 24 Although Plaintiff outlines years’ worth of grievances regarding how his case was handled 25 at the agency level, as Plaintiff’s case stands on appeal, it has been diminished to a mere 26 procedural question of whether his hearing request was dismissed properly. Therefore, the 27 majority of the issues raised in Plaintiff’s Motion for Sanctions and Opposition to the 28 Motion to Remand are simply not relevant to the Court’s determination. The Court 1 recognizes that Plaintiff wishes for the merits of his case to be heard in federal court now, 2 but there is a jurisdictional bar that no amount of forceful language about delay and 3 injustice can overcome. Not every injustice has a legal avenue in this Court–a court of 4 limited jurisdiction that is especially limited in its authority to address claims made against 5 the United States or its agencies. 6 Because remand for a new hearing before a new ALJ is the best remedy available to 7 Plaintiff in this Court, there is no basis to find that Defendant’s request for a new hearing 8 is frivolous or done for an improper purpose, as required to justify Rule 11 sanctions. 9 Indeed, although Plaintiff does not view it as such, a remand is not only a ruling in his 10 favor but constitutes the best possible outcome for him given the posture of the case and 11 the limits of this Court’s jurisdiction. Rule 11 sanctions against the Commissioner for 12 seeking a voluntary remand under sentence four and requesting a judgment in Plaintiff’s 13 favor are entirely unwarranted. 14 Spoliation Sanctions 15 Plaintiff has also failed to meet his burden to obtain spoliation sanctions under 16 Rule 37. The evidence Plaintiff argues is spoiled includes testimony from agency witnesses 17 to whom Plaintiff directed subpoena requests in 2018, as well as testimony from Plaintiff’s 18 own witnesses whom he wished to call at the hearing. ECF No. 87 at 10-15. See also AR 19 210-221 (Plaintiff’s subpoena requests seeking evidence and testimony from agency 20 witness Don Chobanian and State DDS witness J. Robinson, who were involved in 21 adjudicating Plaintiff’s disability claims at the initial level). Plaintiff submitted those 22 subpoena requests in December 2016, and the ALJ denied them on August 16, 2022. AR 23 210-221; AR 522-23. 24 Relevant to Plaintiff’s claims here, although Rule 37(e) deals with ESI evidence, this 25 Court has explained that “destruction of non-ESI evidence as a result of [] repeated 26 discovery misconduct and delay[,]” including tactical delays resulting in the loss or 27 impairment of witnesses’ memories, can suffice to establish prejudice in support of 28 spoliation sanctions. CrossFit, Inc. v. Nat’l Strength and Conditioning Ass’n, No. 14-CV- 1 1191 JLS (KSC), 2019 WL 6527951, at *18 (S.D. Cal. Dec. 4, 2019). But see Johnson v. 2 Bonner Cnty., No. 2:18-CV-00244-DCN, 2021 WL 5828025, at *9 (D. Idaho Dec. 8, 2021) 3 (“Memories are not physical evidence that can be spoliated”). For purposes of addressing 4 Plaintiff’s motion, the Court assumes without deciding that discovery misconduct resulting 5 in the loss of evidence in the form of witnesses’ memories could support the imposition of 6 spoliation sanctions under certain circumstances. However, Plaintiff has failed to show 7 discovery misconduct on the part of Defendant justifying the imposition of spoliation 8 sanctions. 9 As outlined in the Commissioner’s Opposition to the Motion for Sanctions, the delay 10 of Plaintiff’s case was not solely the result of bureaucratic delays on the part of the agency. 11 Plaintiff also requested several extensions of time to submit evidence to the Appeals 12 Council after the ALJ’s first decision. Following the Appeals Council’s order vacating the 13 ALJ’s decision and ordering a new hearing, Plaintiff requested that the hearing be 14 rescheduled or postponed no less than five times and repeatedly objected to the hearing 15 notices throughout 2021 and 2022, initially on the basis that he refused to attend a 16 telephonic hearing and later because he refused to appear in front of the specific ALJ and 17 in the specific venue that he accused of bias and criminal conspiracy against him. See ECF 18 No. 93 at 4-5 (citing to AR 222; 225-26, 232-33, 243-44; 279; 403; 494; 35-50; 1248-49; 19 1250; 1260-65; 1275-76; 1280-86; 1286-89). Therefore, to the extent the passage of time 20 in this case has served to render any evidence unavailable, both parties bear some 21 responsibility for it. 22 More importantly, as the moving party, Plaintiff bears the burden of showing that 23 the agency failed to preserve evidence or destroyed it. Plaintiff does not point to any 24 specific evidence that was either destroyed, or that the agency had in its custody and control 25 but failed to preserve. Plaintiff argues that after the passage of twelve years since he filed 26 his disability application, “there cannot be anything but an irreparably spoiled witness 27 testimony pool; they know Plaintiff has permanently lost all State DDS, Agency, and 28 Plaintiff’s witnesses and cannot even testify on his own behalf–all due to the 1 ‘unconscionable’ Agency-forced delays that resulted in the ‘memory-erosion’ or ‘gone 2 missing’ factor for all witnesses involved.” ECF No. 87 at 15. But even assuming that the 3 loss of the testimony of the state agency witnesses regarding the decisions they made on 4 Plaintiff’s disability application could amount to the spoliation of evidence, their testimony 5 is not sufficiently important to the disability determination to establish prejudice. As 6 explained by the ALJ in his denial of Plaintiff’s subpoena requests, “the evidence and 7 cross-examination of any witness is not required for a full presentation of this case” 8 because the matter before the ALJ “is limited to whether the claimant was disabled before 9 his date last insured which is 12/31/2010” and Plaintiff’s subpoena requests “demand 10 documentation, and the presence and testimony of individuals that are unable to provide 11 relevant testimony to this issue[.]” AR 522-23. Although Plaintiff may disagree with the 12 ALJ’s finding as to the importance of the evidence he sought in his subpoenas, the denial 13 of his subpoena requests and the passage of time since does not equate to destruction of 14 evidence. And, to the extent Plaintiff argues that he can no longer call his own witnesses 15 at the hearing on remand, the Court finds that the existence of treatment records and other 16 written evidence from Plaintiff’s treating physicians mitigates any loss of live in-person 17 testimony from his physicians. For example, Plaintiff still has the Consultative Exam 18 Report compiled by his treating physician that preserves the evidence from the relevant 19 time period during which Plaintiff alleges disability. 20 In short, Plaintiff has failed to show that Defendant has acted with the intent to 21 deprive him of any evidence, and there is no basis to find that the passage of time in his 22 case has resulted in the loss of evidence in a way that otherwise prejudices Plaintiff. Even 23 if the delay in hearing Plaintiff’s disability application were entirely the fault of the agency, 24 the mere passage of time is not equivalent to the destruction of or failure to preserve 25 evidence within the agency’s custody and control. Accordingly, Plaintiff does not meet his 26 burden to show Rule 37 sanctions are warranted. 27 For these reasons, the Motion for Sanctions should be denied in its entirety. 28 1 CONCLUSION AND RECOMMENDATION 2 The Court submits this Report and Recommendation to United States District Judge 3 || Janis L. Sammartino under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(a) of the 4 || United States District Court for the Southern District of California. For the reasons set forth 5 || above, IT IS HEREBY RECOMMENDED that the District Judge issue an Order: 6 (1) approving and adopting this Report and Recommendation; 7 (2) GRANTING Defendant’s Motion to Remand (ECF No. 61), remanding this case 8 || for a new hearing before a new ALJ under sentence four of Section 205(g) of the Social 9 || Security Act, 42 U.S.C. § 405(g), and entering a final judgment in favor of Plaintiff and 10 || against Defendant, reversing the final decision of the Commissioner; 11 (3) DENYING Plaintiff’s Motion to Bifurcate (ECF No. 63); and 12 (4) DENYING Plaintiff's Motion for Sanctions (ECF No. 87). 13 IT IS HEREBY ORDERED that any party to this action may file written objections 14 || with the Court and serve a copy on all parties no later than March 3, 2025. The document 15 || should be captioned “Objections to Report and Recommendation.” 16 The parties are advised that failure to file objections within the specified time may 17 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 18 |) 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 19 IT IS SO ORDERED. 20 || Dated: February 14, 2025 01 _ArwiorwH. Xyolard Honorable Allison H. Goddard 22 United States Magistrate Judge 23 24 25 26 27 28